Asit Deo Petwal vs State of Jharkhand And Ors

The petitioner has challenged the judgment dated 30.04.2016 passed in Maintenance Case No. 08 of 2005 by which he has been directed to pay Rs. 7500/- per month to the applicant no. 1 who has claimed herself his wife and Rs. 2500/-per month to the applicant no. 2 who according to the applicant no. 1 was born from her wedlock with the petitioner.

Mr. Sanjay Kumar Pandey, the learned counsel for the petitioner has raised two-fold contentions : (i) the opposite party no. 1 has failed to prove her marriage with the petitioner, and (ii) grant of maintenance beyond the claim made in the application under section 125 of the Code of Criminal Procedure is illegal.

At the outset it needs to be indicated that the proceeding under section 125 of the Code of Criminal Procedure is summary in nature and strict proof of a fact and compliance of the rules of evidence are not insisted in a proceeding under section 125 of the Code of Criminal Procedure. The paramount consideration in an application under section 125 of the Code of Criminal Procedure is to see that a wife and/or minor child does not suffer in destitution. For the purpose of section 125 of the Code of Criminal Procedure, the expression wife has been interpreted in a manner which is different from the strict interpretation applied in criminal cases and, therefore, proof of performance of essential rituals of marriage is not required and if evidence is laid by the applicant that over a period of time she has been residing with the opposite party, to whom she claims herself married wife, as husband and wife, then marriage between the parties shall be inferred. In "Kamala Vs. M.R. Mohan Kumar, 2018 SCC OnLine SC 2121, the Hon'ble Supreme Court has observed as under :

"15. "Unlike matrimonial proceedings where strict proof of marriage is essential, in the proceedings under Section 125 CrPC, such strict standard of proof is not necessary as it is summary in nature meant to prevent vagrancy. In Dwarika Prasad Satpathy v. Bidyut Prava Dixit, this Court held that

"27. ... the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. The learned Judges explained the reason for the aforesaid finding by holding that an order passed in an application under Section 125 does not really determine the rights and obligations of the parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance. The learned Judges held that maintenance cannot be denied where there was some evidence on which conclusions of living together could be reached."

When the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance of wife under Section 125 CrPC......."

In the proceeding of Maintenance Case No. 08 of 2005, the applicant no. 1 has examined three witnesses. Besides examining herself as a witness, she has examined her father and brother to support her claim for maintenance from the present petitioner. The petitioner has examined his father as a witness. He has produced a copy of his deposition in Complaint Case No. 156 of 2005 which was filed by the applicant no. 1 and deposition of the applicant no. 1 in the said case who has been examined as P.W.3. He has also produced his service records issued by INSARC, Indian Navy.

The applicant no. 1 who has examined herself as A.W.3 has stated that her marriage with Asit Deo Petwal was solemnized on 31.03.2003 in Mahalaxmi Temple at Mumbai as per Hindu rites and customs and thereafter she was living with him as husband and wife over a period of 1½ years. She has been taken to her matrimonial home at Dehradun by him where she stayed for about 10 days, but, thereafter her mother-in-law and sister-in-law started quarreling with her on the ground that she belongs to another caste. Her husband therefore brought her back Mumbai again and in the meantime she became pregnant. She was brought back at Dehradun by her husband, however, she was ousted from her matrimonial home. She gave birth to a son at Mumbai and thereafter she was never taken back in her marital home by her husband who was working in Indian Navy. She has claimed that in the year 2014 salary of her husband was about 45000/- per month and he owns landed properties whereas she has no source of income to maintain herself and her son. She has laid in evidence birth certificate of the applicant no. 2 issued from Municipal Corporation of Greater Mumbai, Health Department, Government of Maharashtra, order of the Commander, Joint Director Pay and Allowances, Ministry of Defence regarding maintenance allowance to her and her son, Antinatal Card issued from the department of OBS and Gyn, COLABA, Mumbai which mentions her as wife of Asit Deo Petwal, discharge slip dated 10.01.2005 from INHS ASVINI, COLABA and admission slip of the hospital dated 31.12.2004 showing her wife of Asit Deo Petwal and Medical Case Sheets relating to her check-up on 26.08.2004 and 04.12.2004. During her examination she has identified the signature of D.S. Rana, Commander, Joint Director Pay and Allowances, handwriting of Dr. Ritu Agrawal on the discharge slip and Medical Case Sheets. The learned Family Court Judge has observed that she was subjected to lengthy cross-examination, however, she has stood to her grounds and asserted that her marriage with the opposite party was solemnized on 31.03.2003 and she has lived with him as his wife and from the wedlock a son was born. Her father and brother have also supported her on all material aspects of the case. They have stated that the opposite party has refused to keep the applicant no. 1 inspite of their persuasion. They have also spoken about monthly income of the opposite party.

The opposite party who is the petitioner in this criminal revision petition has, however, not examined himself as a witness. His father has stated in the court that his son is still unmarried and he has no knowledge about his marriage with the applicant no. 1. He has further stated that his son has never disclosed about his marriage with Ragini Petwal and he has admitted that he was not living his son during his service tenure. He has also admitted that he has knowledge about deduction from salary of his son for maintenance of the applicant no. 1 and the applicant no. 2. It is also pertinent to record here that the application filed by the applicant no. 1 for subjecting Aman Petwal to paternity test was allowed vide order dated 14.12.2012 and against this order he has filed Criminal Revision No. 03 of 2013 which was dismissed vide order dated 13.05.2013. The learned Family Court Judge has held as under:

"13. Applying the aforesaid principle of law in the facts and circumstances of the case coupled with the evidence on record, it is crystal clear that there is no documentary evidence regarding solemnization of the marriage of the applicant with the opposite party. But from the perusal of Ext.1 (birth certificate) of Aman Petwal, the son of applicant it is apparent that the name of father of the child has been mentioned as Asit D Petwal, the O.P and in place of mother's name, the name of applicant has been mentioned. The birth certificate has been issued from the Municipal Corporation of Greater Mumbai, Health department, Govt. of Maharastra and its authenticity is beyond doubt. Similarly, Ext. 2 which has been issued after the approval of the Chief of Navel Staff by Mr. D.S. Rana, Commander, Joint Director Pay and Allowances for Principal Director Pay and Allowance, Ministry of Defence (Navy), Directorate of Pay and Allowances. D-II Wing, Sena Bhawan, New Delhi, regarding maintenance allowance to Smt. Ragini Petwal, wife and child (son) of A.D. Petwal, L.S R.P. II, 124363-W, clearly shows that after the receipt of the order of the court a sum of Rs. 2000/- per month and Rs.1000/-per month for the maintenance of the applicant (wife) and son has been deducted from the salary of the opposite party since 18.12.2008. It appears that the opposite party never raised any objection against the said deduction from his salary which continued till the passing of the order dated 01.12.2011 passed in Cr. Revision No. 58/11 by the District & Sessions Judge, Koderma. It is apparent from the perusal of the Ext.-3, the Antenatal Card issued from the department of OBS & GYN, INHS ASVINI, COLABA, Mumbai relating to Ragini W/o Asit D Petwal, rank L/S Personal No. 12436 IW Unit-Dunagiri, that said card was issued from Family Welfare Centre, Station Health Organization (N) Old Navy Nagar, Colaba, Mumbai. It shows that the applicant has been shown as the wife of Asit D Petwal and on that premises her Antenatal Card has been issued. It is apparent that the card has been issued as because the applicant happens to be the wife of the opposite party, a Navy Personnel and due to that reason she has been issued the said card which cannot be issued in favour of a civilian. Like wise Ext.-4, the Discharge Slip issued by Dr. Sushil Kumar, Surgeon Captain, Senior Advisor and HOD obstetrics & Gynecology, I.N.H.S. ASVINI, Colaba, clearly goes to show that the applicant Ragini, the wife of Asit D Petwal (O.P.) has been admitted on 31.12.2004 and has been discharged on 10.01.2005 after the delivery of a male child. In view of Discharge Slip it can be safely inferred that the applicant was admitted in the Navy Hospital i.e. INHS ASVINI by the opposite party for the delivery of the child on 31.12.2004 and she was discharged therefrom on 10.01.2005 after the delivery of the child. It may be mentioned here that in a Navy Hospital no civilian can be admitted for either delivery or treatment and the Discharge Slip clearly shows that the name of opposite party has been mentioned in place of the husband of the applicant and his Rank,-P. No. and the name of the Unit has also been mentioned therein. The Medical Case Sheet (Ext.-5 & Ext.-6) goes to show that Ragini wife of Asit D Petwal has been examined in the casualty ward of INHS ASVINI on 26.08.2004 and 04.12.2004 respectively by Sqn. Ldr. Gyta. Mehta prior to her delivery and these two cards speaks much in itself that the applicant being the wife of the opposite party was regularly being checked-up before delivery in the Navy Hospital.

In view of the aforesaid documents the genuineness of which is beyond doubt a question would arise why the applicant was being regularly checked-up by the doctors of Navy Hospital, INHS ASVINI and also that the name of the opposite party has been mentioned in place of the husband of the patient i.e the applicant. All these documents are of unimpeachable character and therefore, a presumption would arise that the applicant and O.P. are legally wedded spouses and heavy onus lies upon the O.P to rebut the said presumption by cogent evidence. But as noticed above nothing has been brought on record on behalf of the O.P. to rebut the said presumption and even he did not dare to appear in the court to examine himself and put forward his defence in this regard. Thus, it can be safely held that the O.P. has miserably failed to discharge his liability to rebut the said presumption of his marriage with the applicant. "

From an analysis of the aforesaid facts, it becomes apparent that the impugned order dated 30.04.2016 passed in Maintenance Case No. 08 of 2005 is based on due consideration of the materials which were laid before the learned Family Court Judge. On claim of the applicant no. 1 for maintenance under section 125 of the Code of Criminal Procedure as wife of the petitioner, I find that the view taken by the learned Family Court Judge is a plausible one and in consonance with the settled legal principles. No error has been committed by the learned Judge while holding that the opposite party is liable to pay maintenance to the applicant no. 1 and the applicant no.2. On quantum of maintenance all that is needed to be observed is that the application under section 125 of the Code of Criminal Procedure was filed in the year 2005 and at that time the applicant no. 1 has claimed maintenance of Rs. 5000/- per month, however, by the time this application was decided more than 10 years had passed and therefore grant of maintenance to the tune of Rs.7500/- per month to the applicant no. 1 and Rs. 2500/- per month to the applicant no. 2 is neither excessive nor illegal. The plea urged by the learned counsel for the petitioner, that conviction of the petitioner under section 496 of the Indian Penal Code has been set-aside by the appellate court, is not a ground to interfere with the order passed in Maintenance Case No. 08 of 2005 and moreover the appellate court has delivered judgment after the order under section 125 of the Code of Criminal procedure has been passed by the Family Court. The standard of test and nature of the proceeding under section 125 of the Code of Criminal Procedure and a criminal trial are different and in this case acquittal of the petitioner for an offence under section 496 of the Indian Penal Code shall have no bearing on the findings recorded by the Family Court in Maintenance Case No.08 of 2005.

Having observed so, keeping in mind limitations of the revisional jurisdiction [refer, "Sheonandan Paswan Vs. State of Bihar" reported in (1987) 1 SCC 288], I am not inclined to interfere in this matter and, accordingly, Criminal Revision No. 876 of 2016 is dismissed.

I.A No. 8066 of 2017 stands disposed of.